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Birmingham Bar Association Bulletin Fall 2015

Domestic Relations G. R. Fernambucq; Boyd, Fernambucq, Dunn & Fann, P.C. Domestic Relations Update Rule 32 of the Alabama Rules of Judicial Administration was amended early this year with two important changes effective April 15, 2015. One change concerns application of the cost of health insurance premiums in the calculation of support. In the past, the entire out-of-pocket premium cost was used in arriving at a support number. Th ere was no authority to pro-rate the premium and case law supported the use of the entire premium being used. Rule 32(b)(7)(e) now provides that the amount used in line 6 on the CS-42 calculation sheet “shall be the pro-rata portion of the medical-insurance premium attributable to the child or children who are the subject of the support order.” Th is number is obtained by ascertaining the amount of the premium “actually paid by, or on behalf of ” (to cover a step-parent making payment) and dividing it by the total number of persons (adult and/or children) that are covered. Th is number is then multiplied by the number of children who are the subject of the support number. Th e income affi davit form CS-41 was revised to accommodate this change. Th e second area that was amended concerns reasons to deviate from application of the guidelines. Rule 32 has always contained provisions that create a rebuttable presumption that the end result of the calculation is the correct amount to be awarded. In a case that is tried, the trial court has had several stated reasons to deviate in addition to a catch-all provision that allows a deviation on “other facts or circumstances” that the court may fi nd that contribute to the child or children’s best interest. Reasons have included extra time in a custodial schedule, extraordinary costs of transporting a child for custodial periods, college education expenses, and assets/income of the child. Th e 2015 amendment includes two more: Th e assumption that the obligee will claim the child as a dependency exemption for state and federal income tax purposes will not be followed; and Th e actual child-care costs incurred on behalf of a child/ren because of a job search of either parent exceeds the costs allowed under the amount provided in subsection(b)(8) of Rule 32 by 20% or more. Th e committee comments of Rule 32 have provided in the past that it was presumed (not required) that the individual receiving the child support would claim the child/ren as dependency exemptions. If that person has no taxable income, unless there is some tax credit that applies, the person with the taxable income who is paying the support should claim the children. Th is new specifi c terminology allows the court to use that state and federal tax exemption as a deviation if the court deems it appropriate. Another change in the area of family law involves the Uniform Interstate Family Support Act (UIFSA). Th e prior version was found at §30-3A-101 through 30-3A-906 Code of Alabama (1975). Th ese sections were specifi cally repealed and replaced with the chapter 3D (commencing with §30-3D-1) to title 30 of the Code of Alabama. Th e act provides strict rules, requirements, and guidance to most any issue that may arise from an interstate (or foreign) support order. As a private practitioner, the number of cases that typically come through the door where this act applies are few and far between. It is absolutely not something you would use very often (if ever) unless you worked as a staff attorney for DHR. Knowing where to fi nd the act (if it is ever needed) to determine what and how to apply it is important. G 10 Birmingham Bar Association


Birmingham Bar Association Bulletin Fall 2015
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